AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
1. Product Safety 1.1 Product Safety Legal Framework Australian Consumer Law The principal law governing product safety in Australia is the Australian Consumer Law, which codifies a single set of consumer protection laws for the whole of Australia, including (but not lim - ited to) laws relating to product safety and prod - uct liability. The Australian Consumer Law is Schedule 2 to the federal Competition and Consumer Act 2010 (Cth). However, its operation across Aus - tralia also depends on state and territory laws, which provide that it has effect as a law of each Australian state and territory. Other Laws In addition to the Australian Consumer Law, there are a number of specific types of prod - ucts that have their own safety regimes. By way of example, gas and electrical safety continues to be regulated at a state and territory level, so that each Australian jurisdiction has its own gas and electrical safety legislation, which applies to gas and electrical appliances. Other areas ‒ such as therapeutic goods (ie, medicines and medi - cal devices), food, agricultural and veterinary products, genetically modified organisms, and industrial chemicals (including cosmetics) ‒ have their own federal safety regimes, pursuant to: • the Therapeutic Goods Act 1989 (Cth); • the Australia New Zealand Food Standards Code; • the Agricultural and Veterinary Chemicals Act 1994 (Cth) and the Agricultural and Veterinary Chemicals Code Act 1994 (Cth); • the Gene Technology Act 2000 (Cth); and • the Industrial Chemicals Act 2019 (Cth).
In each case, these regimes do not prevent the products in question from being subject to the Australian Consumer Law, subject to certain lim - ited carve-outs. In addition to these statutory obligations, prod - uct manufacturers and suppliers are subject to obligations under common law. Specifically, per - sons who are injured by a product may have a right to sue the supplier of the product in neg - ligence (as well as under statutory causes of action created by the Australian Consumer Law), and an analysis of a supplier’s duty to users of its product in negligence will often be important in assessing the appropriate response to a poten - tial product safety risk. 1.2 Regulatory Authorities for Product The principal Australian product safety regula - tor is the Australian Competition and Consumer Commission (ACCC), which is responsible for administering the Competition and Consumer Act 2010 (Cth), including the Australian Consum - er Law. The ACCC has regulatory, investigatory and prosecutorial powers granted to it under the Competition and Consumer Act 2010. In rela - tion to product safety, those powers include the power to require the production of documents or the provision of information, including the power to examine witnesses and to enter premises, conduct searches and seize consumer goods, equipment and documents. Typically, the pow - ers of entry, search and seizure must be exer - cised pursuant to a warrant, unless there are circumstances that require their exercise without delay in order to protect life or public safety. The ACCC also has powers to take a range of actions to protect consumer safety, including commencing compulsory recall actions, issu - Safety Federal
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